When an objection is raised about the sufficiency of stamp duty on a document, the trial court is required to impound the document and refer it to the Collector for determination of the stamp duty and penalty payable, rather than outrightly rejecting it as inadmissible.

1. - Petitioner-plaintiff has filed this writ petition to challenge impugned order dated 27.11.2013 passed by Additional District and Sessions Judge No.2, Jodhpur Metropolitan (for short, 'learned Court below'), whereby learned Court below, while accepting application of the respondent-defendant under Sections 35 and 39 of the Rajasthan Stamp Act, 1998 (for short, 'Act of 1998'), has recorded a finding that the document in the nature of agreement to sale is not properly stamped, therefore, the same cannot be exhibited & accepted in evidence and be kept in 'D' part of the file.

2. The facts necessary and germane to the matter are that petitioner-plaintiff filed a suit for specific performance of contract and perpetual injunction against the respondent-defendant. The suit filed by the petitioner was based on alleged agreement to sale dated 18.06.2009 on 100/- rupees stamp. On behalf of respondent, return statement was filed, and thereafter, learned Court below framed issues. When the evidence of the petitioner-plaintiff was going on, an application under Sections 35 and 39 of the Act of 1998 was filed by respondent-defendant raising the objection that the alleged agreement to sale is not properly stamped, and therefore, it is inadmissible in evidence. The application was contested by the petitioner-plaintiff. After hearing rival submissions, learned Court below passed the impugned order.

3. I have heard learned counsel for the parties and perused the impugned order and also examined Chapter IV of the Act of 1998.

4. During the course of arguments, Mr. Thanvi, learned counsel for the petitioner has placed reliance on a decision of this Court in Sunita (Smt.) v. Municipal Council, Bhilwara & Anr. [2015(2) DNJ (Raj.)715] , wherein the Court has considered the procedure to be adopted by trial Court when an objection is raised about the document being insufficiently stamped. Mr. Thanvi has also placed reliance on an earlier decision of this Court in Moti Lal Dangi v. Lrs. of Sohan Kumar & Ors.[2008 WLC (Raj.) UC 241] . This Court, in Bhawana and Ors. v. Chandmal [2015 AIR CC 1237 (Raj.)] , has also examined the procedure to be followed by trial Court when document produced is insufficiently stamped and not inadmissible in evidence. Court has held para Nos.:-

"14. This takes this court to consider as to what course was required to be adopted by the court below in respect of the document in question sought to be tendered in evidence.

15. As per provisions of Section 37, every person having by law or consent of the parties, authority to receive evidence and every person incharge of the public office except an officer or police before whom any instrument chargeable to duty is produced and if it appears to him that such instrument is not duly stamped shall impound and refer the same to the Collector for the determination of the stamp duty together with the penalty payable. Thus, it is the duty of the Court to impound the document not duly stamped and make a reference to the Collector for determination of the stamp duty and penalty payable, notwithstanding the fact that the party concerned has not expressed his readiness and willingness to pay the deficient stamp duty and penalty.

16. Section 39 of the Act mandates that no instrument chargeable with a duty under the Act shall be admitted in evidence for any purpose by any persons having by law or consent of the parties authority to receive evidence shall be acted upon registered or authenticated by any such person or by any public officer unless such instrument is duly stamped. However, by virtue of proviso (a) to Section 39 subject to all just exception, the instrument can be admitted in evidence on payment of the duty with which same is chargeable or in case of instrument insufficiently stamped, the amount required to make up such duty and a penalty of Rs. 100 or ten times of the amount of deficient portions thereof, whichever is higher.

17. Further, Section 42 which prescribes the